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prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem

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Bava Basra 53

BAVA BASRA 52 & 53 - these Dafim have been dedicated anonymously l'Iluy Nishmas Tzirel Nechamah bas Tuvya Yehudah.



(a) Rav asked whether the acquiring of a gift not in the presence of the owner also requires 'Lech Chazek u'Keni'. Shmuel did not consider this She'eilah relevant - because, in his opinion, if in the case of a sale, where the main objective of the seller is to obtain money, we say that, even though he has attained that objective, without 'Lech, Chazek u'Keni he retains the right to retract, then how much more so by a gift, where there is no such objective!

(b) Rav counters this - with the S'vara that 'Nosen, be'Ayin Yafah Hu Nosen' ('When someone gives a gift, he gives it generously), giving Matanah a possible advantage over Mecher.

(c) Shmuel too, holds of the S'vara 'Nosen, be'Ayin Yafah Hu Nosen' - only he confines it to after the Kinyan has taken place, where the donor strengthens the hand of the recipient even against his own (as we learned above with regard to a man who gives a field to his wife, where he may not eat the Peiros, even though he would have been able to, had he sold it to her), but not as far as validating the actual gift is concerned.

(d) Shmuel interprets the Tana of the Beraisa's Lashon 'Kol she'Hu', with regard to ...

1. ... Gadar - as raising the height of the wall up to ten Tefachim.
2. ... Paratz - as widening an existing breach in a way that enables a person to enter more easily (as we shall now see).
(a) 'Gadar Kol she'Hu' not be referring to a case where an intruder ...
1. ... could not have clambered over the wall (due to the angle of the wall, or because it was built on a slope), even before he built it higher - because that would not even constitute a 'Kol she-Hu'.
2. ... was previously able to clamber over the wall with great effort, and now he could not do so at all - because that would not be classified as a 'Kol-she'Hu', but as a great achievement.
(b) In fact, it refers to - where he was previously able to climb over the wall easily, but now, only with difficulty. This too, constitutes a Kinyan Chazakah.

(c) That being the case, it would not make difference if after he heightened the wall, it was still less than ten Tefachim (only in most cases that would be the height that would make life problematic for the would-be Ganav).

(d) By the same token, we interpret 'Paratz Kol-she'Hu' to mean - that he breached the wall to the extent that where it had previously been a pain to get through the entrance, it had now become easy.

(a) Similarly, 'Na'al Kol-she'Hu' refers to a case where -he closed up part of the entrance to make it more difficult to gain entry. Alternatively, it means that he fitted a new lock.

(b) Locking the door by the property of Ger who died is not considered a Chazakah - because it is not an act of ownership. In fact, it would constitute a Mitzvah ('Mavri'ach Ari' [keeping unwanted elements out of a fellow-Jew's house]) if the Ger had still been alive (rather than serve as a proof that he had bought the property).

(c) A hirer is Koneh when he is merely handed the keys of the apartment (a prerequisite to locking or unlocking the door). Consequently - if Reuven, who has rented his apartment to Shimon, hands him the keys before the eve of the fourteenth, the latter is Chayav to search for Chametz (as we learned in Pesachim).

(d) Even assuming that this ruling extends to Reuven selling his apartment to Shimon, it will not apply to Gezel ha'Ger - because there is nobody to hand him the keys. In other words, locking or unlocking the door of an apartment is effective as a Kinyan, only if the owner gives his express consent.

(a) Rebbi Asi Amar Rebbi Yochanan rules that if Shimon places a clod of earth into a hole in a wall surrounding a field or removes one - he acquires the field ...

(b) ... in the case of Nechsei ha'Ger (though the same would apply if he purchased the field from Reuven).

(c) Shimon cannot have had in mind merely to prevent water from entering the field, or to drain the water that had already accumulated there respectively - because, as we explained earlier, that would constitute 'Mavri'ach Ari', which does not signify ownership.

(d) What Shimon must therefore have had in mind was - either to prevent the water that was already in the field from draining, or to let water into the field, respectively, which, unlike the previous case, is a Tikun in the field.




(a) Rebbi Asi Amar Rebbi Yochanan rules that if Shimon makes a Chazakah on one of two fields which are divided by a border - then he acquires that field only.

(b) The Din would be ...

1. ... in a case where no border divided between the two - that he would aut omatically acquire both fields with the one Kinyan.
2. ... if Shimon expressly intended to acquire both fields with the one Kinyan - that he would also only acquire the field on which he made the Chazakah.
3. ... if he intended to acquire the second field with the Kinyan on the first - that he would acquire neither of them (because a person cannot acquire without the intention of doing so).
(c) The previous Halachah (i.e. where he intended to acquire both fields with the one Kinyan) will not apply in a case where Shimon was purchasing them from Reuven - on the basis of Shmuel who taught that someone who purchases ten fields in ten different parts of the world, acquires them all with a Kinyan on just one of them (as we already learned in Bava Kama).

(d) Rebbi Zeira asks whether the same ruling will apply if Shimon intended to acquire the border, as well as the second field. He might ...

1. ... then acquire the second field as well - because the only reason that he did not acquire it in the previous case, is due to the fact that the two fields are separate entities, and since he did not intend to acquire the border that connects it with the field that he is acquiring, he cannot acquire it either. But once he does, he will acquire the second field as well.
2. ... not acquire it even then - because, since the border itself (which is generally either higher or lower than the field) is not really part of the field either, in which case he will not even acquire it, let alone the second field.
(a) Assuming that in the previous case, Shimon does not acquire the border, Rebbi Elazar asks what the Din will be if he makes a Kinyan on the border, with the intention of acquiring the fields too. The reason that he might acquire them, even if, in the previous case, he does not acquire the border is - because, whereas, on the one hand the border does not need the field, on the other, the field needs the border (like an animal needs reigns, and which he therefore acquires via a Kinyan on the reigns).

(b) On the other hand, they might not be comparable, because the field and the border, after all, are two separate entities as we just explained ...

(c) ... and the reason that Rebbi Yochanan did not then teach us this case (which would have been a bigger Chidush [rather than the reverse case]) is - because, a border as such is not a major acquisition, and people would be more likely to acquire a border together with a field, than vice-versa.

(d) We conclude Rebbi Zeira's She'eilah with 'Teiku' ('Tishbi Yetaretz Kushyos ve'Iba'ayos') - and that's how we conclude Rebbi Elazar's She'eilah, too.

(a) With regard to acquiring a room within a room, what does Rav Nachman Amar Rabah bar Avuhah say about someone making a Kinyan on ...
1. ... the outer room with the intention of acquiring the inner room as well - that he only acquires the outer room (since the occupant of the former does not need the latter, and therefore has no rights in it).
2. ... the inner room with the intention of acquiring the outer room as well - then he does indeed acquire them both (since the occupant of the former must have rights in the latter in order to has access to the street).
(b) Rav Nachman Amar Rabah bar Avuhah rules, that if Reuven builds a large mansion on property of a Ger who died, and Shimon puts in the doors - Shimon acquires the property (and not Reuven, since after Reuven completes his work, it is just as accessible to the public as it was been beforehand [and the objective of a house is to be inaccessible to the public]). Consequently, it is the one who puts in the doors who effectively completes the building, by turning it into a Reshus-ha'Yachid.

(c) Rav Dimi bar Yosef Amar Rebbi Elazar says that someone who adds 'Siyud ve'Kiyud' to a completed mansion of a Ger who died acquires it.

1. 'Siyud' - comprises plastering the mansion with lime.
2. 'Kiyud' - comprises painting pictures on the walls.
(d) Rav Yosef explains that the Shiur of Siyud and Kiyud is one Amah square. Rav Chisda qualifies this ruling - by limiting its location to a spot facing the front door (Elsewhere will require more than that).
(a) Rav Chisda quoting Rav ruled that someone who places mats in the property of a Ger who died - and then sleeps on them, acquires them.

(b) Rav proved this from the Beraisa regarding the Kinyan of Avadim. The Tana rules that if an Eved ties or unties Shimon's shoes, dresses or undresses him, or bathes him - he becomes his Eved.

(c) And the same will apply should he anoint him, scratch him, or dress him.

(d) To this list, the Tana Kama adds - 'Higbi'ho'.

(a) Rebbi Shimon comments that Hagbahah should not be any worse than Chazakah, since it acquires everywhere - even in the Reshus ha'Rabim, in the domain of the seller or in a Simta (an alleyway).

(b) So that Rebbi Shimon should not merely be echoing the words of the Tana Kama, we establish 'Higbi'ho' of the Tana Kama - to mean that the Eved picked up the man who was acquiring him, but not vice-versa.

(c) Rebbi Shimon disagrees - inasmuch as seeing as Hagbahah is such a wide-spread Kinyan (as we just explained), it is logical to say that it will acquire Avadim too.

(a) Rav now extrapolates from the Beraisa - that the Chazakah of Karka is not confined exclusively to 'Na'al, Ga'dar u'Paratz' (cited in our Mishnah, but) extends to wherever the Machzik derives positive benefit from it, even by merely leaning or lying on it (like in the case of an Eved who picks up his master, to be acquired by him).

(b) We learn from the Pasuk in Eikev "vi'Yerishtem Osam vi'Yeshavtem Bam" (or from a similar Pasuk in Yirmiyah) - that one acquires Karka with a Kinyan Chazakah, and what's more, that one can even acquire it by lying down on it (since 'Yeshivah' has connotations of sitting or lying down).

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